Failed defamation claim proves pricey

After three years of legal wrangling, the defamation lawsuit brought by Brad Spengler and his company Open Source Security (OSS) against open-source pioneer Bruce Perens has finally concluded.

It was clear that the end was nigh last month when California's Ninth Circuit Court of Appeals affirmed a lower court ruling against the plaintiffs.

Spengler and OSS sued Perens for a June 2017 blog post in which Perens ventured the opinion that Grsecurity, Open Source Security's Linux kernel security enhancements, could expose customers to potential liability under the terms of the General Public License (GPL).

OSS says that customers who exercise their rights to redistribute its software under the GPL will no longer receive software updates – the biz wants to be paid for its work, a problem not really addressed by the GPL. Perens, the creator of the open-source definition, pointed out that section six of the GPLv2 prohibits modifications of the license terms.

In December 2017, San Francisco magistrate judge Laurel Beeler determined that Perens had expressed an opinion as allowed under American law and dismissed the defamation claim.

Perens then sought to recoup legal expenses under California's Anti-Strategic Lawsuits Against Public Participation (SLAPP) statute, a law designed to penalize litigation brought mainly to discourage free speech and public participation. And a month later he was awarded more than $526,000 in damages.

Spengler and OSS then appealed, and managed to get the award reduced to about $260,000, but not overturned.

Following the Ninth Circuit decision in February, Rohit Chhabra, attorney for OSS, declined to say whether he intended to pursue a further appeal. He insisted that Perens' statement was opinion, rather than settled legal fact, and that OSS has the right to withhold updates from customers exercising their rights under the GPL.

Finally, both parties have agreed to end the litigation.

On Friday, Judge Beeler signed a mutually agreed order [PDF] directing the payment of a $300,000 bond, filed by OSS and underwritten by its insurer, Great American Insurance Group, that was set aside to guarantee the 2018 judgement during the appeals process. The final award from OSS exceeds the $260,000 judgement because court costs have continued since then and interest payments are also due.

Perens gets nothing personally for his trouble, but his legal team will be paid. O’Melveny & Myers LLP will receive $262,303.62 for the district court litigation (fees and costs) and $2,210.36 for the appeal (costs) while the Electronic Frontier Foundation will be paid $34,474.35 (fees) and $1,011.67 (costs) for its role in the appeal.

As to whether OSS's redistribution terms violate the GPL, that has yet to be tested in court. ®